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EXHIBIT 10.134
AMENDMENT NO. 2 TO CONTRACT SALE AGREEMENT
AND
AMENDMENT NO. 1 TO SERVICING AGREEMENT
THIS AMENDMENT NO. 2 TO CONTRACT SALE AGREEMENT and AMENDMENT NO. 1 TO
SERVICING AGREEMENT (the "Amendment") is made as of April 7, 2000, by and
between NUVELL CREDIT CORPORATION, a Delaware corporation (the "Purchaser" or
the "Owner"), and NATIONAL AUTO FINANCE COMPANY, INC., a Delaware corporation
(the "Seller" or the "Servicer").
WHEREAS, the Seller and the Purchaser have entered into that certain
Contract Sale Agreement dated as of February 4, 2000, which was amended by a
First Amendment to Contract Sale Agreement dated effective as of February 29,
2000 (the "Contract Sale Agreement"), pursuant to which the Seller has agreed to
sell, and the Purchaser has agreed to purchase, Eligible Program Contracts, as
defined in the Contract Sale Agreement; and
WHEREAS, the Seller, as the "Servicer," and the Purchaser, as the
"Owner," have entered into that certain Servicing Agreement dated as of February
4, 2000 (the "Servicing Agreement"), pursuant to which the Seller has agreed to
provide collection and administrative services with respect to Sold Program
Contracts purchased by the Purchaser from the Seller pursuant to the Contract
Sale Agreement and that certain Sale and Purchase Agreement by and between the
Seller, National Financial Auto Funding Trust II and the Purchaser dated as of
March 30, 2000, as amended;
WHEREAS, the Seller and the Purchaser now desire to amend the Contract
Sale Agreement and the Servicing Agreement, in the manner and to the extent
stated herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions.
Each capitalized term in this Amendment shall have the meaning ascribed
to it set forth in the Contract Sale Agreement, unless otherwise stated in this
Amendment:
Section 2. Amendments to Contract Sale Agreement.
(a) Section 2.5 of the Contract Sale Agreement is hereby amended and
restated in its entirety as follows:
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The Term of this Agreement shall be for an initial period (the
"Initial Period") commencing on the date hereof and ending on May 31,
2000 (such date, as such is and may be extended pursuant hereto, is
hereinafter referred to as the "Scheduled Termination Date"). The
Seller and the Purchaser hereby agree that the Term of this Agreement
shall be extended beyond the Initial Period until December 31, 2000.
The Term of this Agreement shall be extended for an additional three
(3) calendar months beyond a Scheduled Termination Date, unless the
Purchaser or the Seller shall give written notice to the other party of
its desire to terminate this Agreement at least fifteen (15) days prior
to the Scheduled Termination Date. Either the Purchaser or the Seller
shall be allowed to terminate this Agreement and its respective
obligations under this Agreement (not including its indemnification
obligations and such other obligations as shall survive termination of
this Agreement, as specifically set forth herein) upon the earlier of
(i) the Scheduled Termination Date, (ii) the passage of any applicable
period of remedy and notice pursuant to Article VII, or (iii) after the
Initial Period, the giving to the other party of at least thirty (30)
days advance written notice of its desire to terminate this Agreement.
(b) Section 5.1(c) of the Contract Sale Agreement is hereby amended and
restated in its entirety as follows:
(c) Cause to be delivered to the Purchaser within fifteen (15)
days after May 31, 2000, and after any other extension of the Scheduled
Termination Date (i) an Officer's Certificate of the Seller in the form
of Exhibit E, dated the date of such delivery; (ii) a Secretary's
Certificate of Seller in the form required by Section 3.1(a)(v) hereof,
dated the date of such delivery; and (iii) an opinion of counsel, in
form and substance satisfactory to the Purchaser, reaffirming as of the
date of its delivery the opinion of counsel with respect to the Seller
and delivered to the Purchaser on the Closing Date pursuant to Section
3.1(a)(viii) hereof.
(c) Section 7.3(b)(iii), subpart (B), of the Contract Sale Agreement is
hereby amended by replacing the reference to "Six and 50/100 Percent (6.50%) per
annum" with "Seven and 50/100 Percent (7.50%) per annum," so that such provision
reads, "or (B) the difference between the Seller's actual cost of financing the
ownership of Eligible Program Contracts and Seven and 50/100 Percent (7.50%) per
annum. . . ."
Section 3. Amendments to Servicing Agreement.
Section 11.1 of the Servicing Agreement is hereby amended and restated
in its entirety as follows:
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This Servicing Agreement shall be effective commencing as of
the date hereof. The Term of this Servicing Agreement shall be for an
initial period (the "Initial Period") commencing on the date hereof and
ending on May 31, 2000 (such date, as such is and may be extended
pursuant hereto, is hereinafter referred to as the "Scheduled
Termination Date"). The Servicer and the Owner hereby agree that the
Term of this Servicing Agreement shall be extended beyond the Initial
Period until December 31, 2000. The Term of this Servicing Agreement
shall be extended for an additional three (3) calendar months beyond a
Scheduled Termination Date, unless the Owner shall give written notice
to the Servicer of its desire to terminate this Agreement at least
fifteen (15) days prior to the Scheduled Termination Date.
Notwithstanding the foregoing, the Term of this Servicing Agreement
shall be terminated upon the happening of any of the following events:
(a) the later of the collection by Servicer and transfer to Owner of
final payment or liquidation with respect to the last Contract and the
remittance of all funds due hereunder; (b) the mutual written consent
of Servicer and Owner; (c) Servicer or Owner has an uncured Default
under Article X hereof, and the non-defaulting party has given the
defaulting party notice of termination as provided in Article X, which
Event of Default has not been waived by the non-defaulting party
pursuant to Section 10.3 hereof, or (d) the earlier of the last day of
the calendar month in which the Sale Agreement shall be terminated,
pursuant to its terms or otherwise, or the fifteenth (15th) day after
which either the Servicer or the Owner shall have given written notice
to the other party of its desire to terminate the Sale Agreement
pursuant to subprovision (iii) of the last sentence of Section 2.5 of
the Sale Agreement.
Section 4. Governing Law.
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
Section 5. Counterparts.
This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
Section 6. Effectiveness of Contract Sale Agreement.
Except as expressly amended by the terms of this Amendment, all terms
and conditions of the Contract Sale Agreement and the Servicing Agreement shall
remain in full force and effect.
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IN WITNESS WHEREOF, Seller and Purchaser have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
NUVELL CREDIT CORPORATION,
as Purchaser and Owner
By: /s/ XXXXX X. XXXXXXXXX
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Xxxxx X. Xxxxxxxxx
Title: President
NATIONAL AUTO FINANCE COMPANY, INC.,
as Seller and Servicer
By: /s/ XXXXXXX XXXXX
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Xxxxxxx Xxxxx
Title: President and Chief Operating Officer
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